C2001/4443, Transcript of Proceedings [2001] AIRCTrans 2832 (23 October 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 0563
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/4443

COMMUNITY PHARMACY AWARD 1998

Application under section 113 of the Act
by the Association of Professional Engineers,
Scientists and Managers, Australia re safety
new review - wages May 2001

MELBOURNE

10.04 AM, THURSDAY, 4 OCTOBER 2001

PN1

MR C. COLLISON: I appear on behalf of The Association of Professional Engineers, Scientists and Managers, Australia, together with MR P. GYSSLINK.

PN2

MS J. HEAGNEY: I appear on behalf of the Shop Distributive and Allied Employees Association.

PN3

MS D. BAKER: I appear on behalf of the Pharmacy Guild of Australia, together with MS J. MOBAYAD.

PN4

MS J. WHITECROSS: I appear on behalf of the Victorian Employers Chamber of Commerce and Industries respondent members.

PN5

THE COMMISSIONER: Yes, Mr Collison.

PN6

MR COLLISON: Thank you, Commissioner. Commissioner, this is an application to vary the Community Pharmacy Award by increasing the minimum rate of pay for pharmacy trainees, and also ensuring that the Federal minimum wage applies to all adult employees in community pharmacy. The application for this matter was lodged with the Commission on 28 August this year, together with an order for substituted service and I received a notice of listing on 6 September.

PN7

On 7 September I sent a registered letter to all of the parties on the substituted service with details of this hearing and a copy of the draft order, and I lodged a sign statement with the Commission on 11 September, confirming those actions and I presume you got that.

PN8

THE COMMISSIONER: Yes, we have got those, thank you.

PN9

MR COLLISON: Commissioner, I will just briefly go through the content of the application and what we are intending to do. The first part of the variation is to increase the minimum rate, as I say, for pharmacy trainees to $630.40, which is a relativity of 130 per cent. And the application, Commissioner, is made under the statement of principles which are attached to the safety net review decision, PR002001 of May this year. And in particular I refer to point 6 of that attachment A, which details the work value changes or the principles that are required to seek the variation to an award under the work value changes.

PN10

Commissioner, I am also aware that my friends on the employer side are going to oppose this application, and from our previous discussions on this issue I know that the parties are a long way apart. So I will just give you a bit of a brief historical background of where we are on this matter, or where we have been. The Community Pharmacy Award was first made at the end of 1996, in December 1996; C1790 was the number of the award and that was after numerous hearings before the Commission, ending on 28 November 1996, before Commissioner Hingley.

PN11

At that stage the award was a compilation of the existing State and Federal awards that covered the employment of community pharmacies across Australia. Over the next 18 months the parties, all of those represented here today, worked through the clauses basically all of the clauses one by one, so you come to some standardised employment entitlements across Australia. And we also at the same time took on board the award simplification of the decision that have been recently handed down, and they were incorporated into the review.

PN12

A new consolidated award was issued by the Commission, and it was a consent award on 30 June 1998. And in the hearing before Commissioner Hingley on 100 June 1998 in which the parties went through the award clause by clause and told Commissioner where we had come from and what we had agreed to. This is what we said about the student and trainee rates that were sitting in the award at the time, and I am quoting from transcript of that day, 22 June 1998, page 6, at lines 529. And these were my comments on transcript and they were later endorsed by the other parties in their submission. I said, Commissioner:

PN13

Clause 15.3 is the various wages for students and trainees across Australia and they are applied very differently. They are a bit of a mess really and that is something else that, we, the parties, need to work on.

PN14

And Commissioner, for your information I would like to hand up a couple of documents that show you just what the student training rates are at the current time.

PN15

THE COMMISSIONER: Yes. Thank you. Are these different documents?

PN16

MR COLLISON: Yes, they are.

EXHIBIT #C1 SALARY RATES FOR COMMUNITY PHARMACY STUDENTS

EXHIBIT #C2 COMMUNITY PHARMACY TRAINEES

PN17

MR COLLISON: Well, as you can see by looking at those documents, Commissioner, there are different wage rates for both trainees and students across Australia. I am dealing with trainees in this initial part of my submission, so perhaps if we look at C2, and we can see that there is really no standardised wage for pharmacy trainees. In Victoria it is broken in to four pay periods, in Queensland, Tasmania, New South Wales and the ACT, it is broken into two. There are no award rates for trainees in South Australia, so it is a bit of a mess.

PN18

Some of the rates that I have been doing some research recently to find out where their origins were, and I think the rates in Australia they were certainly there in the early 1980s, probably even earlier than that. So they have rarely been reviewed and over the years certainly the university courses for pharmacists have changed significantly, and even in the last two years, or couple of years they have changed from a three year to a four year undergraduate course. So the students, when they graduate these days and become a trainee for their first year out, they certainly have a lot more knowledge and skills than they had 20 years ago.

PN19

Following the hearings in the Commission and the creating of a new award at the end of 1998, the Pharmacy Guild and APESMA have had some discussions on a without prejudice basis where the rates of pharmacy trainees should go, and we certainly never reached agreement, we are a long way off on that. So, Commissioner, in relation to trainee rates I am quite happy to have a further attempt at reaching the negotiated settlement with the Pharmacy Guild, but it is my belief that this matter will ultimately end up before the Commission as a matter for arbitration.

PN20

In relation to the second part of the variation I am seeking, I am seeking there to delete a sub-clause in the award, sub-clause, off the top of my head, Commissioner, I think it was 16.3.1 which exempts students and trainees from the application of the Federal minimum wage. Now, when we put - - -

PN21

THE COMMISSIONER: 16.3 is it?

PN22

MR COLLISON: 16.3.1, of the existing award. It is the sub-clause under the Federal minimum wage clause. It basically says that the Federal minimum wage shall have no application to pharmacy students and trainees as they have rates in the award that are in excess of the Federal minimum wage. Now, when we agreed on that in 1996, I suppose the period '96 to '98, and we put that into the award, that was probably valid in those days, but it has certainly changed since then. In relation to the - I should say perhaps the only pharmacy trainee rate that does not come up to the minimum rate is basically the first three months of a traineeship in Victoria.

PN23

And in the scheme of what we were trying to do in creating the new Federal award, and I think at that stage we had hoped we might reach the negotiated settlement fairly quickly, then three months for a trainee did not seem worth arguing about at the time, it was something that we could re-visit. In relation to students it does have some application now. Back in '96/'98, as I said before, the pharmacy undergraduate degrees were then three years, so the vast majority of students were not adults in the industrial sense, ie aged over 21, when they finished their undergraduate degree and became a trainee.

PN24

So when they then became a trainee the majority of them across Australia were paid in excess of the Federal minimum wage. That situation has changed in two respects. With the pharmacy degrees now becoming four years, we are now seeing fourth year students aged - quite a lot of fourth y ear students aged 21, some of them are aged over that, of course, the national intake of pharmacy students back in 1995 was about 400 across Australia. It rose to 600 in 1997, and last year the intake in the year 2000, the last year I have statistics for, it was up to 920. So we have gone in five years from 400 to 920.

PN25

Included in those student numbers would be what we call the APEC students, and they are people that have either studied pharmacy overseas, some may already be qualified, and they come into Australia under the APEC program and many of them are mature age students, they are required to undertake some study in Australia to have their qualifications recognised before they can practice as a pharmacist. Now, I note from the document I received in the mail yesterday, which was the Victorian Pharmacy Board Annual General Report for the year ending June 2001, that they approved 20 such applications in the year under review.

PN26

So we could assume that probably across Australia, conservatively, that we may have 50 or 60 mature age students coming in under that program. So what I say now is that that sub-clause 16.3.1 is now excluding a significant number of pharmacy students from receiving at least the basic wage when they work in pharmacies. And the work they do would generally be evening and weekend work. And they are certainly paid a lot less than the shop assistants, if in the pharmacies they have been classified under the shop assistants awards, they would certainly be paid a lot more than the minimum wage for what they do. Commissioner, I want to hand up another document now, it is - - -

PN27

THE COMMISSIONER: Do you have consent for that variation?

PN28

MR COLLISON: Sorry?

PN29

THE COMMISSIONER: Do you have consent for that variation?

PN30

MR COLLISON: Yes, I believe I have, Commissioner.

EXHIBIT #C3 DOCUMENT TITLED STUDENT WORK PAY SURVEY

PN31

MR COLLISON: Commissioner, C3, APESMA are currently planning a national survey of pharmacy students and the duties they undertake when working in pharmacies. We conducted a pilot last month in Victoria amongst some 74 third and fourth year students that Paul Gysslink and myself met with. The students, as I say third and fourth year students, there is the questionnaire on the front page of C3, and on the back is a brief summary of the data that we extracted from that questionnaire.

PN32

I do not want to go through it in detail, but looking at that, going through that, there are 17 students out of the 74 there who have responded to the questionnaire that they were working part-time in pharmacies; sorry, 17 students aged over 21, who were working in pharmacies and there is quite a lot more that are aged under 21 working in pharmacies part-time. And 14 of those 17 students are paid a base rate which is below the Federal minimum wage. And perhaps if I just take you to the first page of these result summary, just the second person there is a male aged 21, who is working Saturday where the penalty rate in the award provides for a time and a quarter payment which brings that $12.90 down to about $10.30 or $10.40 as the minimum rate, which is below the Federal minimum rate.

PN33

And we have got others there, for example, about a third of the way down there is a 21 year old female who has been paid $8.90 working on Wednesday evening between 5 and 10 pm, and that brings it down to a base rate of around $6, in terms of the award. So while I acknowledge that is not a very detailed survey and it was only a pilot that we conducted to see what sort of data we might get back, if these survey results were repeated across the country I would suggest that there is probably an unacceptable level of exploitation in this industry and I can see no justification why the removal of 16.3.1, should not attract the support of the parties here today.

PN34

And that, Commissioner, is the basis of my opening statements on these matters. If the Commission pleases.

PN35

THE COMMISSIONER: Did you want to address the other aspects of your application, the increase to the minimum rates?

PN36

MR COLLISON: Well, Commissioner, the increase to the minimum rate only applies to the pharmacy trainees under the work value principles. The award has been varied for the safety net increase.

PN37

THE COMMISSIONER: I see.

PN38

MR COLLISON: So this is just an application under the principles attached to the safety net decision for the purposes of work value for - - -

PN39

THE COMMISSIONER: For work value?

PN40

MR COLLISON: Yes, for the trainees.

PN41

THE COMMISSIONER: Yes, very well. Thank you. Yes, Ms Heagney.

PN42

MS HEAGNEY: Commissioner, the SDA supports the application of Mr Collison. If it please the Commission.

PN43

THE COMMISSIONER: Thank you. Ms Baker.

PN44

MS BAKER: Commissioner, the Pharmacy Guild of Australia opposes both aspects of this application. We have had undertaken our own independent study of work value of pharmacy trainees and the result of that study has been relativities that are quite different from those put forward in this application. With regard to the student rates of pay we would seek ultimately to remove those from the award entirely. Our view is that those rates are not relevant, given that the students either undertake periods of work practice which form part of their university studies, or are in fact employed as pharmacy assistants if they are not yet qualified.

PN45

THE COMMISSIONER: Do they get paid if they do it as part of work practice for their university studies?

PN46

MS BAKER: I believe that does vary. Usually that is undertaken with an agreement between the university and the employer, such that requirements such as workers compensation and so on are covered by the university as opposed to the employer. On that basis, we have entered some discussions with APESMA over the last 12 months or so and have not reached agreement so far, but we would be very happy to negotiate further on this issue, and request that the matter be referred into conference. If the Commission pleases.

PN47

THE COMMISSIONER: Yes. Ms Whitecross.

PN48

MS WHITECROSS: If the Commission pleases. The Victorian Employers Chamber of Commerce and Industries supports the submission in principle of the Pharmacy Guild. Many of our members are also members of the Pharmacy Guild and who are taking a lead role in these discussions. VECCI is of yet to have discussions with APESMA and would support the Pharmacy Guild's suggestion that the parties be directed to conference to further discuss this matter. If the Commission pleases.

PN49

THE COMMISSIONER: Mr Collison, is conciliation at an end?

PN50

MR COLLISON: No, Commissioner, we are quite happy to have further discussions with the parties on the matters before the Commission. But I would - the variation that we are seeking by removing sub-clause 16.3.1 to ensure that the Federal minimum wage applies to all adult employees, I think that that is only an interim measure in relation to the perhaps the discussions that we need - the parties need to have over student rates which are more complex than the trainee rates.

PN51

As the Guild signalled today, they will be seeking the total removal of student rates and obviously we will be vigorously opposing that. But as I think as an interim measure I can see no reason why the Federal minimum wage should not apply. Personally I think - - -

PN52

THE COMMISSIONER: Wouldn't that be the effect of removing student rates?

PN53

MR COLLISON: That is a good question. But it is not our intention to remove student rates entirely. If the Commission pleases.

PN54

THE COMMISSIONER: Well, on that note of my confusion, I will adjourn the matter into conference to discuss the future programming of the matter.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 SALARY RATES FOR COMMUNITY PHARMACY STUDENTS PN17
EXHIBIT #C2 COMMUNITY PHARMACY TRAINEES PN17
EXHIBIT #C3 DOCUMENT TITLED STUDENT WORK PAY SURVEY PN31